Court Of Protection Order – What Is It And What Does It Mean?
The Law Of…Knowing The Powers Of The COP
A family or member or close friend can sometimes, unfortunately, lose the ability to make decisions for themselves. A loss of mental capacity to make decisions could result from a sudden accident or degenerative illness. If this occurs and the individual has no Lasting Power of Attorney in place, or agreement cannot be reached about what is in the person’s best interests, the Court of Protection may be required to intervene.
Grace Serwanga, Private Client Partner, Explains just what this intervention means from a legal standpoint.
What Is The Court Of Protection?
The Court of Protection (COP) is a Court within the HM Courts and Tribunal Service. The Court makes decisions on the financial or welfare matters relating to people who have lost the ability to make these decisions for themselves. This is also known as 'lacking capacity'.
What Is A Court Of Protection Order?
The legal definition of a lack of capacity is that one is unable to make a decision, in relation to a specific matter because they are suffering from an impairment or disturbance in the functioning of the mind or brain. One is unable to make a decision if they are unable to use, weigh, retain and communicate the information relevant to the specific decision in question.
The loss of capacity typically arises from:
- Serious illness or brain injury
- Advanced dementia
- Learning disabilities
The COP can make a variety of Orders in the best interests of one who lacks capacity in relation to a matter. These Orders may be declarations about whether or not one lacks the capacity to deal with a specific matter; one-off decisions on a specific matter or orders appointing a deputy to make decisions on behalf the incapacitated person.
Finance & Property/Health & Welfare Deputyships.
There are two kinds of Deputy Order that the COP can make:
- Property and Financial Affairs Deputyship: You are in charge of paying the vulnerable persons bills for them, as well as management of their pension.
- Personal Welfare Deputyship: You are in charge of the medical treatment and welfare the person without capacity receives.
The COP tends to deal with finance and property applications in a different way from health and welfare matters.
In relation to property affairs if a person lacks the capacity to manage his/her financial affairs the COP will generally approve of applications to appoint a deputy to make decisions the incapacitated person cannot make. The COP is a lot more reluctant to appoint a Personal Welfare Deputy.
With welfare matters when a person is found to lack capacity to make a decision for themselves, and there is a dispute between family, friends and authorities on what is best for them, the COP will usually make a one-off order dealing with the specific matters at hand.
An order that allows one person to make all decisions on a specific issue is a serious order with far-reaching consequences. The law prefers the COP to make one-off decisions on specific matters rather than to appoint a deputy to make the decisions however with most property affairs there will be a series of ongoing decisions to be made and so the appointment of financial deputies to make the on-going decisions.
How Do I Apply?
To become someone's deputy, you must first check that you meet the legal criteria set out in the Mental Capacity Act 2005, and the relevant guidance. If you do, our solicitors can advise you on filling out the appropriate forms, obtaining the relevant assessments, and then sending them to the COP.
The process and the forms/assessments can be difficult to understand, and, if they are not completed correctly, it can cause delay and/or a rejection of your application. It's recommended that you consult a solicitor before proceeding, even if you then decide to make the application independently.
Do You Require Advice and Assistance in Relation to A Deputyship Order?
If you have a loved one who has recently lost capacity to make decisions, then you may require a COP order to appoint yourself this person's deputy or you may require the COP’s assistance to make other orders in the person’s best interests.
Our solicitors can advise you and walk you through the process, ensuring that any forms and assessments are accurately completed in advance and that you are fully aware of the process.
Contact us today on our freephone number or by using our online enquiry form.